Terms and Conditions

LAST UPDATE AUGUST 26, 2019

CAPSSION GUIDELINES

CAPSSION GUIDELINES | CONSUMER FIRST

We strongly believe that all influencer activities should be transparent and put consumers first. CAPSSION expects that all users comply with the laws and regulations relating to influencer marketing. This means that all pieces of content which are being facilitated through CAPSSION should be transparent and labeled with appropriate disclosures, such as #ad.

CAPSSION GUIDELINES FOR BRAND

BE OPEN: This platform is for Influencers: you may not know them, but rest assured their followers do. We believe accessing countless pockets of influence is far more meaningful than a large celebrity endorsement.BE RESPONSIVE: Respond to each request made by influencers quickly and send your offer in a timely manner, this will prevent Influencers from having a negative experience with your brand.BE BRAVE: Resist the urge to micro-manage. Everything from bad grammar to shaky footage makes up a unique dialect an Influencer has crafted with their community over hundreds (if not thousands) of posts. If you change the language, you’ll change the response.BE AWARE: Feel free to share an Influencer's post within the same social platform, however content cannot be used in any additional or other marketing material, nor should it be used outside of the original platform without getting their additional approval.BE TRANSPARENT: Be aware of the need to be transparent when engaging with influencers, and the requirement to label influencer posts with #ad.

CAPSSION GUIDELINES FOR INFLUENCER

BE TRANSPARENT: Keep up to speed with the latest developments and best practices on how to label your posts in a transparent way to show that it is paid for by the brand. Don’t try to hide the fact that it is sponsored; both you and the brand will lose credibility if you do.BE MINDFUL: Only collaborate with brands that are in line with your editorial line and your community.BE GENEROUS: Publication must stay on your platform for at least 30 days.BE GENUINE: We work exclusively with Influencers who’ve organically grown their audience. If you’re misrepresenting the size of your audience or engagement in your content, we reserve the right to terminate your CAPSSION account.

CAPSSION PLATFORM TERMS OF USE

INTRODUCTION

CAPSSION Ltd ( “Capssion”, "we," "us," "our"), registered in Hong Kong under company number 68284511, is the owner of the https://www.capssion.com and https://platform.capssion.com websites and the CAPSSION Influencer App available the Apple Store and on the Play Store (collectively, the “Service” or the “Platform”).Information about how to join and use the CAPSSION Platform forms part of these CAPSSION Platform Terms of Use (“Terms of Use”). Your access to and use of the CAPSSION Platform is conditional upon your agreement to and acceptance of the Terms of Use and the CAPSSION Guidelines. Each time you use the CAPSSION Platform, you agree to be bound by these Terms of Use. If you do not wish to be bound by these Terms of Use, do not use the CAPSSION Platform.CAPSSION is a platform that connects Brands and Influencers to interact, form relationships and create and distribute content through the Influencer’s Channel, such as (but not limited to) Instagram, or Youtube, subject to compliance with these Terms of Use. In these Terms of Use, Brands and Influencers are collectively and individually referred to as “Users” or “You” as the context requires.

1. SERVICE DESCRIPTION

1.1 The Service provides Users with a platform that facilitates collaborations between Brands and Influencers on social media platforms. CAPSSION allows Influencers and Creators to collaborate with brands on projects of their choice. CAPSSION enables Brands to find, manage and collaborate with Influencers and Creators interested by their offers.

2. GENERAL CONDITIONS

2.1 You may access and use the Service only for lawful purposes. All rights, title and interest in and to the Service and its components will remain with and belong exclusively to CAPSSION.2.2 Unless otherwise indicated, you shall not:
  1. Sublicense, resell, rent, lease, transfer, assign, time share or otherwise commercially exploit or make the Service available to any third party; including without limitation, the development of a competing platform or access point for use or access to CAPSSION data,
  2. Use the Service in any unlawful manner (including without limitation in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service or its components,
  3. Modify, adapt or hack the Service to, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks,
  4. Store on any network, hard drive, computer or cloud-storage any data or information obtained from the Services or the Site for any period of more than 14 days.
2.3 You are solely responsible for all data, information, feedback, suggestions, text, content and other materials that you deliver, provide or otherwise transmit or store (hereafter “post(ing)”) in connection with or relating to the Service.2.4 You shall defend, indemnify, and hold harmless CAPSSION from any and all claims, losses, liabilities, damages, fees, expenses and costs (including attorneys’ fees, court costs, damage awards, and settlement amounts) that result from any claim or allegation against any Indemnified Party arising from Your access to or use of the Platform, any Assignments You provide to the Platform, and any breach by You of these Terms of Use. CAPSSION will provide You with notice of any such claim or allegation, and CAPSSION will have the right to participate in the defense of any such claim at its expense2.5 If the CAPSSION Platform is not capable of running as planned for any reason beyond the reasonable control of CAPSSION, including because of war, terrorism, state of emergency or disaster (including natural disaster), infection by computer virus, bugs, tampering, unauthorised intervention, technical failures or any which corrupt or affect the administration, security, fairness, integrity or proper conduct of the CAPSSION Platform, or if any social media platform alters its terms of service, access or permission in such a way that affects the CAPSSION Platform, CAPSSION reserves the right, in its absolute discretion, to cancel, terminate, modify or suspend the CAPSSION Platform.2.6 No additional Influencer, Brand or Media Agency originating agreement or other terms and conditions (including purchase order or insertion order terms and conditions) may be imposed on CAPSSION unless agreed by CAPSSION in writing and, in such case, if any terms and conditions in an Influencer, Brand or Media Agency originating agreement or other terms and conditions are inconsistent with these Terms of Use, these Terms of Use shall prevail to the extent of any inconsistency.2.7 If you are using the CAPSSION Platform on behalf of a legal entity, you represent that you are authorised to enter into an agreement on behalf of that legal entity. These Terms of Use constitute the entire agreement between you and CAPSSION and govern your use of the CAPSSION Platform, superseding any prior agreements between you and CAPSSION. You will not assign any rights or obligations under these Terms of Use, in whole or in part, to any third party without the prior written consent of CAPSSION. CAPSSION may assign its rights or obligations hereunder at its sole discretion.2.8 Any waiver of any provision of these Terms of Use will only be effective if in writing and signed by CAPSSION. If any clause or part of any clause is in any way unenforceable, invalid or illegal, it is to be read down and amended so as to be enforceable, valid and legal. If this is not possible, the clause (or where possible, the offending part) is to be severed from these Terms of Use without affecting the enforceability, validity or legality of the remaining clauses (or parts of those clauses) which will continue in full force and effect.2.9 CAPSSION reserves the right to use your name and/or your business name as a reference for marketing or promotional purposes on CAPSSION website and in other communication with existing or potential customers. To decline CAPSSION this right, you must email support@capssion.com stating that you do not wish to be used as a reference.

3. CHANGE TO TERMS

3.1 CAPSSION reserves the right, at any time, to modify the Platform or these Terms of Use, by making those modifications available on the Platform or by providing notice to You as specified in these Terms of Use. Modifications will be effective immediately upon posting on the Platform or such other notice. You may cease using the Platform at any time if you do not agree to any modification. However, You will be deemed to have agreed to such modification through Your continued use of the Platform following such notice.

4. USING THE CAPSSION PLATFORM

4.1 The CAPSSION Platform allows Brands to create Influencer Marketing Campaigns, which are then shared with Influencers via the Influencer Interface. Influencers using the Influencer Interface can respond to a Campaign by sending a request to participate to the relevant Brand for approval. The relevant Brand is solely responsible for reviewing and approving all requests.4.2 Content is provided by the relevant Influencer and is not moderated, approved or endorsed by CAPSSION. Accordingly, no Content constitutes a representation by CAPSSION, nor does CAPSSION accept any liability for the legality, validity, accuracy or suitability of any consent provided by Influencers or Brands. If you have a question or concern about Content, including your rights to reproduce it, you must make your own inquiries to CAPSSION directly, or if advised by CAPSSION, by contacting the relevant Influencer directly. You agree that CAPSSION is not responsible for, and does not endorse any Content posted using the CAPSSION Platform. CAPSSION does not have any obligation to pre-moderate, monitor, edit or remove any Content. If your Content violates these Terms of Use, you bear legal responsibility for that Content.4.3 Influencers and Brands agree that they will not attempt to negotiate terms or payment with each other outside of the CAPSSION Platform. Without limiting any other rights or remedies available to CAPSSION, any attempt to circumvent the CAPSSION Platform may result in removal from the CAPSSION Platform at CAPSSION sole discretion. You may not remove any watermarks or copyright notices contained in any Content on the CAPSSION Platform.4.4 The CAPSSION Platform is designed for use by people aged 16 years and over. Users under the age of 16 years may only use the CAPSSION Platform with the consent of a parent or legal guardian. To use the CAPSSION Platform, you must be eligible to use the social media platforms (under the relevant platforms prevailing terms and conditions) upon which you intend to publish Publications.

5. ACCOUNT

5. 1. In order to access and use the CAPSSION Platform, Influencers must register an account via the Influencer Interface in the manner required and as set out in these Terms of Use (“Influencer Account”) and Brands must register an account via Brand Interface in the manner required and as set out in these Terms of Use (“Brand Account”).5.2 CAPSSION reserves the right to refuse or cancel registration of an Account for any reason in its sole discretion. Any decision of CAPSSION is final and no correspondence will be entered into.5.3 All information provided when registering an Account must be current, correct and complete. Incomplete, ineligible or incomprehensible Account registrations will not be valid. You must be logged in to your Account in the manner required each time you wish to use the CAPSSION Platform. You may never use another’s Account without their permission.5.4 You are responsible for maintaining the confidentiality of your login, password and account and for all activities that occur under your login or account. CAPSSION reserves the right to access your account in order to respond to your requests for technical support and to investigate suspicious activity.5.5 You agree to immediately notify CAPSSION of any unauthorised use of your Account or any other breach of security. It is your sole responsibility to control access to and use of your Account and to notify CAPSSION when you desire to cancel your Account. CAPSSION will not be responsible or liable for any loss or damage arising from your failure to comply with this provision.5.6 CAPSSION retains the right and absolute discretion to terminate your Account and/or access to the CAPSSION Platform (or any element thereof) if it believes that you are abusing or tampering with the CAPSSION Platform (or any element thereof) in any way, that you have breached these Terms of Use, or that you have engaged in any unlawful, unethical, unsportsmanlike or other misconduct calculated to jeopardise the proper administration of the CAPSSION Platform (or any element thereof). CAPSSION’s legal rights to recover damages or other compensation from such an offender are reserved.5.7 The use of any automated software or any other mechanical or electronic means allowing a member to create Accounts is prohibited. CAPSSION reserves the right to suspend or terminate your Account if it believes you are engaging in such activity.5.8 Users understand that in creating an Account they are providing their information to CAPSSION and not to any social media platform. Users of the CAPSSION Platform (whether Influencers or Brands) are solely responsible and liable for any Content or information they transmit to other users. To the extent permitted by law, each user of the CAPSSION Platform agrees to indemnify, defend and forever hold harmless, all social media platforms and their associated agencies and companies, against any and all losses, actions, claims, costs, expenses and damages (of any nature) which may be incurred by the user in respect of their use of the CAPSSION Platform. Any questions, comments or complaints about the CAPSSION Platform must be directed to CAPSSION and not to any media or social media platforms. For the purposes of this provision, CAPSSION contracts on its own behalf and also on behalf of the social media platforms and, accordingly, may take action in that capacity to recover on behalf of the social media platforms where acts or omissions cause loss or damage to such social media platforms or to CAPSSION.

6. ADDITIONAL TERMS FOR INFLUENCERS

6.1 Any person over the age of 16 years, or over the age of 13 years with the written consent of a parent or legal guardian, may register an Influencer Account, but in order to participate in any Campaigns via the CAPSSION Platform, Influencer’s must meet the following minimum standards:
  1. at least 2000 followers on the Influencer’s Channels;
  2. Influencer’s Channels must be public (viewable by anyone); and
  3. Influencer’s Channels may not contain content that is contrary to these Terms of Use or to the terms of use of the relevant social media platform of the Influencer’s Channels.
6.2 If you do not meet the minimum standard in condition 6.1 above, you may not be able to participate in Campaigns or access the full functionality of the Influencer Interface.6.3 To register an Influencer Account, Influencer must use the Influencer Interface and sign in to their Account with their Facebook account. In order to participate in campaigns, an Influencer must connect their Instagram account, Youtube account and/or Facebook Page in the manner required.6.4 The creation of the CAPSSION account gives access to a Personal Profile that allows the user to be identified within the Community and to benefit from CAPSSION services. As soon as the Personal Profile is created, the user is identified within the CAPSSION Community by the pseudonym and avatar he or she uses on the social network, to which the user consents.6.5 Content must adhere to the requirements contained in these Terms of Use, the CAPSSION Guidelines and any additional requirements imposed by Brands as part of a Campaign and advised to Influencer. Publications which do not comply with this condition may be removed from the CAPSSION Platform at CAPSSION’s absolute discretion.6.6 Influencers must clearly disclose in sponsored Publications their relationship with the Brand. CAPSSION requires that you make such disclosures in such a way so that it is clear to the ordinary consumer viewing your Channels that there is a relationship between You and the Brand. This may be achieved through the prominent use of hashtags such as #advertisement or #ad or through other means suitable to your particular circumstances, Community and Channels. CAPSSION reserves the right, but is in no way obliged, to review and monitor the disclosure practices of all Influencers in relation to particular Publications or your Channels generally and to require greater levels of disclosure (at CAPSSION’s sole discretion) in particular Publications or across your Channels generally or, if you do not agree to the required levels of disclosure, to remove you from the CAPSSION Platform. Influencers in the USA should have regard to the Federal Trade Commission’s Endorsement Guides available at: https://www.ftc.gov/tips-advice/business-center/guidance/ftcs-endorsement-guides-what-people-are-asking.6.7 Influencers must not misrepresent the size of their audience or their numbers of followers or engagement. Followers must be obtained organically and not through unethical or unsportsmanlike behavior such as (but not limited to), purchasing followers, likes or engagement. In the event that CAPSSION suspects (in its sole discretion) that Influencers are not complying with the requirement for followers to be authentic and organically grown, CAPSSION reserves the right to remove Influencers from the CAPSSION Platform.6.8 You warrant, in respect of each Publications made via the CAPSSION Platform, that:
  1. you are aged over 16 years or over 13 years and have your parent or legal guardian’s consent;
  2. for Influencers aged over 16 years, if your Publication features children aged 16 or younger, that you are the parent or legal guardian of those children;
  3. for Influencers aged 13 years to 16 years, that you have your parent or legal guardian's consent and that your Publication does not feature other children aged 16 years or younger;
  4. you own the Intellectual Property Rights in the relevant Publication and have the right, as applicable, to licence the Content to CAPSSION and the Brand in the manner set out in these Terms of Use;
  5. the relevant Publication does not violate the privacy rights, contract rights or other rights (including Intellectual Property Rights) of any person, corporation or entity;
  6. the relevant Publication does not contain any misrepresentation or suggestion that you or any entity has the approval or sponsorship of any other entity which you or it does not have;
  7. any and all opinions and views stated in the relevant Publication are genuinely held by you;
  8. and any and all statements in the relevant Publication regarding your use and experience of the Brand or the Brand’s products or services are true and correct and representative of your opinion regardless of whether you are paid for such content or not, and fairly represent your use and experience and you will promptly notify CAPSSION if your opinion of the Brand changes from that which you have expressed to date;
  9. the relevant Publication does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive;
  10. the relevant Publication is original and does not contain materials that have been previously broadcast, streamed, published, posted onto any social media channel, or otherwise communicated to the public by you in any way and does not contain materials that have been used in previous marketing materials or promotions for any third party or which otherwise infringe the rights of any third party;
  11. if the relevant Publication includes any Third Party Material (including music or personality/talent rights), that all such Third Party Material and any associated licence terms or use limitations have been fully disclosed to CAPSSION and the Brand;
  12. if you are a member of any guild, union or industrial organisation, you have not entered into any other agreement, arrangement or understanding which would or may prevent or limit you from adhering to these Terms of Use, performing your obligations or granting the rights and benefits set forth herein, or result in a conflict of interest;
  13. if the relevant Publication contains images or references to third parties or third party property, including music, that the third party (or third party property owner) has been informed and agrees in writing that such images, property or references may be included in the Publication and used by CAPSSION, the Brand or any other third party in accordance with these Terms of Use without remuneration or compensation to the third party (or third party property owner) for the purpose of promoting CAPSSION, the Brand or any other third party in any media and in perpetuity and you do not need to obtain any licenses from any third party or pay royalties to any third party with respect to the Publication; and
  14. the use of the Publication and the exercise of the Intellectual Property Rights in the relevant Publication by the Brand and CAPSSION will not infringe any legal rights, copyright or other Intellectual Property Rights of any person or entity nor give rise to a liability to pay compensation.
6.9 You acknowledge and agree that the Brand and CAPSSION has the right at any time to moderate any Publication after publication to a Channel and that you will immediately make any reasonable modification or amendment requested by CAPSSION or the relevant Brand to the Publication, subject to compliance with these Terms of Use and the CAPSSION Guidelines. You also acknowledge and agree that if you post an incorrect Publication, the Brand or CAPSSION may request that you post the correct approved Publication and that you will immediately comply with such a request.6.10 You acknowledge and agree that the Brand and CAPSSION has the right at any time to request that you remove any Publication from you Channels and that you will comply with such a request immediately upon receipt of notification.6.11 CAPSSION and the relevant Influencer and Brand acknowledge and agree that any necessary public relations announcements regarding the removal or modification of a Publication, as the case may be, will be agreed by CAPSSION and the relevant Influencer and Brand before publication.6.12 All right, title and interest in all Intellectual Property Rights in Publications will remain or be vested in the Influencer. Nothing in these Influencer & Brand Terms of Use will be taken to constitute a transfer, assignment or grant of any ownership rights in the Publications to any other party, including CAPSSION or the Brand.6.13 The Influencer agrees to grant in respect of each and every Publication:
  1. to CAPSSION (and its agents):
    1. a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to use the Publication for the purpose of marketing and promoting CAPSSION (and its products and services) in any manner, without further notification to or consent of the Influencer or any further compensation payable to the Influencer;
    2. the right to use the Influencer’s Identity and performances in the Publication and to communicate the Publication to the public in all languages, in all media including but not limited to: all online paid media (including but not limited to digital banners); in all online owned media (including but not limited to the website of CAPSSION and internal communications of CAPSSION); in all social media (including but not limited to the social media channels of CAPSSION); and in any earned media or public relations activity published by a third party (including but not limited to print, digital and/or social media).
  2. to the relevant Brand (and its agents):
    1. the right to organically share, comment upon and organically re-post the relevant Publication in the social media channel upon which the Publication was published, for a period of thirty (30) days expiring at 11:59pm on the thirtieth day after the Publication was first published; and
    2. the right to use the Influencer’s Identity and performances in the Publication and to communicate the post to the public in accordance with conditions 6.13(b)(i) above and in any earned media or public relations activity published by a third party (including but not limited to print, digital and/or social media).
6.14 You acknowledge and agree that the relevant Brand will not be required to remove from its social media channels any Publication or any comment, share or re-post of a Publication after the period in condition 6.13(b)(i) has expired.6.15 As an Influencer, in respect of each Publication, you consent to the relevant Brand and its successors, licensees, and assigns, and anyone authorised by them, changing, copying, adding to, taking from, adapting or translating, in any manner or context or doing any other act in respect of the Publication notwithstanding that such conduct may infringe your moral rights or performer’s rights (or similar laws in any territory or jurisdiction) in the Publication, and, to the extent possible, your grant a waiver of all moral rights and performer’s rights in each Publication.6.16 As an Influencer, you agree that you will not:
  1. delay posting your Publication no later than 14 days after after You have received your Offer (unless the Brand stipulates a different timeline);
  2. remove the Publication from your Channels for a period of 30 days after the Publication is published, expiring at 11:59pm on the thirtieth calendar day after the Publication is published;
  3. edit any Publication after it has been published other than in accordance with these Terms of Use;
  4. parody, disparage, give any adverse comment or make fun of the Brand or its products of services generally in any way;
  5. create any contextual or surrounding posts or other material on a Channel that in any way detracts from, dilutes the effect of, or undermines a Publication or the Brand or its products or services;
  6. grant any further rights in a Publication to a Brand without the written permission of CAPSSION and appropriate fees being negotiated on a reasonable basis. CAPSSION will charge a reasonable service fee for negotiating any use extensions between you and a Brand
6.17 You acknowledge that the restrictions contained in the clause above are reasonable in scope and duration having regard to the interests of the Brand and CAPSSION and that these Terms of Use go no further than is reasonably necessary to protect the interests of the Brand and CAPSSION.

7. ADDITIONAL TERMS FOR BRANDS

7.1 These Terms of Use are not intended to alter the terms or conditions of any specific Rights Licence (including any content Licence agreement) you may have with CAPSSION, its subsidiaries or affiliates, and to the extent of any conflict, the terms of your Rights Licence (including any content Licence agreement) will prevail. These Terms of Use and any Rights Licence form a legal agreement between you (or the employer or entity on whose behalf you are entering into this agreement) and CAPSSION.7.2 To register a Brand Account, you must access the Brand Interface and log in in the manner required.7.3 Brands are able to create two types of Campaigns: Product Gifting Campaigns and Events.7.4 Brand agrees to grant in respect of all Content uploaded to the CAPSSION Platform as part of a Campaign:
  1. to grant to CAPSSION (and its agents), a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to use the Content for the purpose of marketing and promoting CAPSSION (and its products and services) in any manner, without further notification to or consent of the Brand or any compensation payable to the Brand; and
  2. with respect to Influencer Marketing Campaigns, to grant to the relevant Influencer, a royalty-free, perpetual, worldwide, irrevocable, unconditional, non-exclusive, transferable licence to post, share, comment upon and re-post the relevant Content across their Channels as part of any approved Publication in accordance with these Terms of Use and the CAPSSION Guidelines.
7.5 CAPSSION has the right to cancel, suspend, restrict services to and/or terminate a Brand’s account if CAPSSION believes (in its sole discretion) that the Brand is not using the CAPSSION Platform in a fair and reasonable way, or are attempting to use the CAPSSION Platform in a way which does not treat the Influencers or the CAPSSION Platform in a fair and reasonable way and/or in accordance with the purposes for which the CAPSSION Platform were intended.7.6 Brand agrees to manage Influencers' requests in a timely manner. In particular, Brand agrees to:
  1. Review and approve or reject Influencer’s requests within 5 business days from the moment it has been requested by the influencer.
  2. Ship the item to Influencers within 5 business days from the moment a request has been approved.
7.7 Brand agrees to provide valid tracking details (a tracking number and a courier) for each parcel sent to Influencers, when the Offer is a physical item. Tracking details must be uploaded in the Platform within 2 business days after the item was sent.7.8 CAPSSION in its sole discretion reserves the right to reject Campaigns that do not comply with these Terms of Use.7.9 You agree that you will not negotiate terms or payment to Influencers outside the CAPSSION Platform. Any attempt to circumvent the CAPSSION Platform may result in the removal of the Brand from the CAPSSION Platform in CAPSSION’s sole discretion.7.10 You must not attempt to instruct, coerce or manipulate Influencer to hide the commercial relationship between the Advertiser and the Influencer. Such attempts may result in Brand being immediately removed from the CAPSSION Platform.7.11 You acknowledge and agree that your right to use a Publication is strictly limited in accordance with clause 6.13(b)(i) above. For the avoidance of doubt, you must not use a Publication in any form of paid, sponsored or promoted advertising, including within the social media channel upon which the Publication was published (for example, via Facebook Power Editor). If you wish to use a Publication other than in accordance with clause 6.13(b)(i), you must contact CAPSSION directly at the contact details set out in these Terms of Use. Additional fees may apply.7.12 You warrant that:
  1. you own the Intellectual Property Rights in Content you upload to the CAPSSION Platform and have the right to licence the Content to CAPSSION and Influencers in the manner set out in these Terms of Use; or
  2. you have the right to licence the Content to CAPSSION and Influencers in the manner set out in these Terms of Use; and
  3. you will not encourage or facilitate any misrepresentation or suggestion that the Brand or any entity has the approval or sponsorship of any other entity which the Brand or entity does not have;
  4. any Content you upload to the CAPSSION Platform does not contain any representations or material which you know or suspect (or ought reasonably to have known or suspected) to be false, misleading or deceptive; and
  5. where the Publication include Third Party Material, you will strictly comply with any use limitations notified to you in respect of the Third Party Material and will obtain all licences required for your intended use of the Publication prior to use of such Publication, including obtaining any licences required with respect to Third Party Material.
7.13 Brand agrees that CAPSSION is not responsible for any aspect of the Brand’s Content to be reviewed, shared, sponsored or advertised by Influencers. Brand acknowledges and agrees that CAPSSION is not responsible or liable for the content of any Publication.7.14 Brand acknowledges that Influencers are independent third parties and not directly controlled by CAPSSION. As a consequence, any Publication will inherently risk negative or unflattering comments about Brand’s content, products or services. Brand specifically acknowledges and agrees that CAPSSION has no control over any Publication that may be published and that Brand is solely responsible (and assumes all liability and risk) for determining whether such Publication are acceptable and appropriate to the Brand.7.15 Brand agrees that upon notice from CAPSSION or if Brand learns that any Content is subject to an actual or threatened claim of infringement, violation of another right, or other claim, or if CAPSSION removes any Content for any reason and gives the Brand notice of such removal, the Brand will remove such Content from its computer systems and storage devices and will, to the extent possible, cease use of such Content. CAPSSION shall, where possible, endeavor to source comparable Content (to be determined by CAPSSION in its reasonable commercial judgement) free of charge, but subject to these Terms of Use and a comparable Rights Licence.7.16 You acknowledge that CAPSSION has not made any warranties in respect of the success of any Campaign in respect of your business or commercial performance or otherwise of any Publication, Campaign, Channel or other media, marketing communications channel, marketing or advertising campaign, promotion or advertisement.

8. TRANSFER OF RIGHTS AND AUTHORIZATION ON IMAGE RIGHTS

8.1 The Brand may obtain, subject to full payment of the price of this option and the prior written consent of the Influencer, the Intellectual Property Rights on the Content and to benefit from the authorization to use the images of the persons represented in such Content identified by the Brand upon request.8.2 In this case, this assignment of Intellectual Property Rights is made on an exclusive basis, for all purposes, all of its rights to the Content made hereunder, it being understood that the Influencer declares and guarantees that the rights transferred hereunder are the only rights it may exercise with respect to the Content.8.3 The rights assigned include the rights for any use and for any direct and indirect exploitation of all or part of the Content and any creation derived from it, whatever the mode, including all rights: (i) reproduction, (ii) representation, transformation, (iii) evolution and arrangement, (iv) exploitation, in particular commercial exploitation, distribution and marketing, including the right of rental; (v) translation, modification, correction and adaptation, rewriting, (vi) incorporation into any pre-existing or future work, (vii) use, (viii) sub-licensing; and this, in any capacity whatsoever, in whole or in part, in any language, by any means, process and in any form and format, on any medium known or to come.8.4 This assignment of rights is made worldwide and for the term of legal protection of the Content under applicable law and international conventions on literary and artistic property that are or will be in force, including any extensions that may be made to the term of protection. As a result of this assignment, the Brand acquires the status of beneficiary of the Influencer for the exercise of the above rights assigned and holds the most extensive rights in order to make any exploitation of all or part of the Content. With regard to image rights, the Influencer expressly authorizes the Brand to use, reproduce and/or represent all or part of the attributes of the person the Content for communication and marketing purposes, without limitation and on any communication medium as well as to transform, modify, reframe the Content, any commercial authorization being nevertheless prohibited.8.5 This authorization is granted to the Brand exclusively for the Content, in consideration of payment of the price determined by CAPSSION, for the entire world and for a period of ten (10) years. This authorization includes the right to make any modification, addition, deletion, cropping, dubbing, etc. to the initial fixation of the image that the Brand deems useful.

9. TERMINATION OF YOUR ACCOUNT

9.1 You have the right to terminate your account at any time, within the term of your contract or subscription, by sending a cancellation request to support@capssion.com.9.2 CAPSSION reserves the right, in its sole discretion, to early terminate your account if you breach any of the terms or conditions of these Terms of Use.9.3 Upon termination:
  1. All rights and subscriptions granted to You under these Terms of Use will terminate.
  2. You will immediately cease all use of and access to the Platform.
  3. CAPSSION may delete Your Account and any of Your Campaigns

10. PERSONAL DATA AND INFLUENCER INFORMATION

10.1 Brand undertakes, represents and warrants that it will use and process Personal Data (in particular, the Personal Data of Influencers):
  1. only for the purpose of the execution of this Agreement and not disclose it to third parties;
  2. in accordance with the requirements under the applicable personal data protection law; and
  3. in a manner that ensures CAPSSION remains in compliance with the requirements under the applicable personal data protection laws.
10.2 Brand further warrants that it implements sufficient security measures to ensure that the Personal Data are securely kept and maintained as required by the applicable personal data protection law,and agrees to subject itself to the necessary audits undertaken by CAPSSION to ensure compliance of the above warranties and to immediately inform CAPSSION of any Personal Data incident it becomes aware of.10.3 Brand will utilize Influencers information, including Personal Data, disclosed by CAPSSION to Brand or which Brand has otherwise collected or obtained access to pursuant to or in connection with this Agreement, solely for purposes of this Agreement and will not sell, assign, license, publish, lease or otherwise commercially exploit any Influencer information or utilize Influencer information in any manner for its own benefits or carry out any data mining, data compilation or data extraction for the purposes of statistical or trade analysis or otherwise, based on or in connection with the Influencer information. No Influencer information will be disclosed by Brand to any third party without the prior written consent of CAPSSION, and will only be disclosed within Brand’s organization on a need-to-know basis.10.4 Brand agrees to indemnify and hold harmless CAPSSION and each of its respective officers, employees, directors and agents from, and at CAPSSION’s option defend against, any and all liens, damages, losses, liabilities, obligations, penalties, claims, litigation, demands, defences, judgments, suits, proceedings, costs, disbursements or expenses of any kind or of any nature whatsoever (including third party claims, reasonable attorney’s fees, consultants’ fees, experts' fees and other costs of litigation), to the extent such claims arise from or may be in any way attributable to:
  1. any violation of this Agreement by Brand;
  2. the negligence, bad faith,or intentional or wilful misconduct of Brand or its subcontractors (whether or not approved by CAPSSION); or
  3. any security incident for which Brand is directly or indirectly responsible.

11. CAPSSION’S INTELLECTUAL PROPERTY

11.1 All CAPSSION Materials on the CAPSSION Platform are protected by all applicable laws including copyright and trade mark laws unless otherwise specifically noted and may not be used except as permitted in these Terms of Use. Nothing in these Terms of Use will be taken to constitute a transfer, assignment or grant of any ownership rights in any Intellectual Property Rights in the CAPSSION Materials to a Brand or Influencer.11.2 All right, title and interest in all Intellectual Property Rights in all of CAPSSION brands, logos, images, buttons, codes, layout, text, content and products and services as displayed on the CAPSSION Platform (the “Brand Features”) are the property of CAPSSION and will remain or be vested in CAPSSION at all times. Your use of the CAPSSION Platform will not under any circumstances be taken to constitute a transfer, assignment or grant of any ownership rights in any of the Brand Features or the CAPSSION Platform. CAPSSION, on a case by case basis and to the extent required, grants to you a limited, non-exclusive licence to use the Brand Features solely for the purpose, and to the extent necessary, to enable you to use the CAPSSION Platform.

12. MONITORING

12.1 CAPSSION reserves the right to monitor the CAPSSION Platform generally and all Account activity. If your Account shows signs of fraud, abuse or suspicious activity, CAPSSION may close or freeze the Account immediately. CAPSSION retains the right and absolute discretion to suspend or terminate your Account, and/or access to the CAPSSION Platform generally without notice if CAPSSION believes you have abused any privilege accorded to you as a participant in the CAPSSION Platform, supplied misleading information or made any misrepresentations to CAPSSION in connection with the CAPSSION Platform tampered with the CAPSSION Platform in any way, breached these Terms of Use or the CAPSSION Guidelines, or engaged in any unlawful or other improper misconduct calculated to jeopardise the proper administration of the CAPSSION Platform. CAPSSION retains the right to remove any Content that it considers breaches these Terms of Use or the CAPSSION Guidelines. In the event of termination or suspension of your Account in accordance with these Terms of Use, you will have no further access to your Account for the duration of the suspension or at all in the event of termination. CAPSSION’s legal rights to recover damages or other compensation from you are reserved.

13. PRIVACY

13.1 To understand how CAPSSION collects and uses personal information, please visit our Privacy Policy.

14. DISCLAIMER OF WARRANTIES

14.1 The Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance. HOWEVER, THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND CAPSSION EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT CAPSSION DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE OR VIRUS-FREE, NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES, AND NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM CAPSSION OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TERMS OF USE.

15. LIMITATION OF LIABILITY

15.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL CAPSSION BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LOSS OF SUBMISSIONS, OPPORTUNITY, REVENUES OR PROFITS, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.15.2 IN JURISDICTIONS WHERE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES IS NOT PERMITTED, CAPSSION LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.

16. LITIGATION

16.1 The Platform and these Terms are governed by the laws of laws of Hong Kong SAR, wherever You are accessing and/or using the Platform from.16.2 If you have a complaint about CAPSSION, we recommend that you contact us at support@capssion.com before taking further action in the hope that we can resolve the dispute fairly and amicably. If we are unable to reach a resolution, you agree to submit to the exclusive jurisdiction of the courts of Hong Kong who will have exclusive jurisdiction to settle any dispute or claim arising under these Terms.

17. CONTACT AND HELP DETAILS

17.1 If you have any questions about these Terms of Use, the practices of this Platform, or your dealings with this Platform, please contact us at support@capssion.com

18. INTERPRETATION

The following terms have the following meanings in these Terms of Use:
  • “Account” means a Brand Account or an Influencer Account;
  • “Brand” means any person or entity, or its duly authorised agents or representatives, that use the CAPSSION Platform for the purpose of creating Campaigns;
  • “Brand Account” means an account to use the Platform to create Campaigns and manage Influencer relationship;
  • “CAPSSION Guidelines” means the code of practice and conduct that must be adhered to by Influencer’s and Brands;
  • “CAPSSION Materials” means the CAPSSION Platform and any associated materials owned, developed or licensed by CAPSSION and made available via the CAPSSION Platform;
  • “CAPSSION Platform” means the Influencer Interface, Brand Interface and any associated CAPSSION properties or websites;
  • “Campaign” means a Product Gifting Campaign or an Event created by a Brand using the Platform to be opened to Influencers via the Influencer Interface for the purpose of finding appropriate Influencers to create Content about the Brand on their social media feed;
  • “Channels” means the social media channels of an Influencer, such as (but not limited to) Instagram, Youtube, Facebook or Twitter;
  • “Community” means an Influencer’s social media following on its Channels;
  • “Content” means a Publication, or any other content or materials uploaded to the CAPSSION Platform by a Brand or an Influencer (but excludes any Third Party Material included in a Publication that is expressly disclosed to CAPSSION and the Brand);
  • “Influencer” means a social media influencer who registers to use the Influencer Interface to create and distribute Publication about Brands;
  • “Influencer Account” means an account to use the Platform to participate in Campaigns;
  • “Influencer Interface” means the CAPSSION Mobile Application available for download via the Apple Store (iOs) or the Google Play Store (Android) or the Web Application available at https://platform.capssion.com/login/creator;
  • “Influencer’s Identity” means the name, image, likeness, character and online persona of the Influencer;
  • “Intellectual Property Rights” means all present or future intellectual property rights of whatever nature anywhere in the world including, but not limited to, rights in respect of or in connection with copyright, inventions (including patents), trade marks, service marks, trade names, domain names, designs, any rights in silicon chip topography, Confidential Information and Know-How and similar industrial, commercial and intellectual property rights, whether or not registered or registrable, and includes the right to apply for the registration of such rights;
  • “Laws” means all applicable laws, codes of practice and guidance relating to influencer marketing in the UK, including the Consumer Protection from Unfair Trading Regulations 2008 and the CAP Code, as well as any applicable guidance issued by the ASA, CAP, CMA, and/or Federal Trade Commission’s Guides Concerning Endorsements and Testimonials in Advertising (“FTC Guides”) from time to time;
  • “Media Agency” means an authorised third party organisation acting on behalf of a Brand or Brands, including public relations, media, creative, design and digital agencies;
  • “Payment” means payment from CAPSSION to an Influencer for a Publication or a payment from a Brand to CAPSSION, as the context requires;
  • “Publication” means a social media post created by an Influencer to be shared with the Influencer’s Community via the Influencer’s Channels;
  • “Publication Fee” means the fee an Influencer nominates as the amount it will charge a Brand to share a Publication with the Influencer’s Community via the nominated Channel;
  • “Rights Fee” means the fixed-fee as stated on the CAPSSION Platform payable by a Brand to CAPSSION for a Rights Licence plus any applicable GST, VAT, or Federal Withholding or Sales Tax;
  • “Rights Licence” means a licence from CAPSSION to the Brand for Content on the terms and conditions stated on the CAPSSION Platform and selected by the Brand, including in any specific content licence agreement;
  • “Third Party Material“ means any material included in a Publication that is owned by or licensed from a third party, including material in relation to which there may be stated, inherent or industry practice-based use limitations as a result of the rights of third parties including, without limitation, rights in music, rights of personality, talent rights and similar;